Globe Gets the Big Stuff Wrong on Question One

Before reading my analysis below, go HERE and read the Globe’s endorsement of Question One.

Done yet?  If so, read on.

I was quite pleased when the Boston Globe editorial board invited me to meet with them to explain why voters should reject or pass on Question One on the 2024 state ballot. The measure would amend the authorizing statute of the state auditor’s office giving her the authority to audit the state legislature without its consent. I was disappointed, however, when the Globe published the seemingly enthusiastic endorsement of Question One you just read.

The bottom line is that giving the state auditor the authority to audit the legislature without its consent via a ballot initiative, rather than through a statute passed by the legislature with “appropriate conditions” clearly spelled out or an actual constitutional amendment, would give the state auditor unprecedented power that clearly violates the separation of powers and legislative supremacy principles of the Massachusetts Constitution. Proponents of a “Yes” vote on Question One, most prominently, State Auditor Diana DiZoglio, have advanced many inaccurate claims and arguments that have left voters without the information necessary to cast a well-informed vote on the measure.

It is my view that the Boston Globe editorial board had an obligation to make all of the foregoing information clear to voters. If voters understood the inaccuracy of claims central to proponents’ case for Question One, including most importantly the measure’s constitutional defects, they would be considerably less enthusiastic about supporting it than polls currently suggest.

The State Auditor’s Office’s Lack of Existing Statutory Authority

On the bright side, the Globe editorial board decided that I was correct about Question One conferring on the state auditor’s office statutory authority that does not currently exist. They acknowledge that Auditor DiZoglio’s claims about Question One merely “clarifying” her statutory authority are false. Unfortunately, the Globe editorial board seems to have willfully ignored the clear implications of our agreement on this issue. While they’ve effectively thrown DiZoglio under the bus by acknowledging that the central premise of her pitch to voters on Question One is wrong, they, nonetheless, enthusiastically endorsed a “Yes on One.” I guess having it both ways is one of the perks when you buy ink by the barrel, so to speak.

The idea that Question One merely asks voters to “clarify” the state auditor’s existing authority to conduct performance audits of the legislature without its consent has been crucial to Auditor Diana DiZoglio’s pitch to voters. The Globe editorial board seems to think that they can credibly distance themselves from what is effectively, if not intentionally, an ongoing misinformation campaign by the auditor and her supporters regarding the auditor’s existing authority, while simultaneously endorsing Question One.

I humbly disagree.

If voters clearly understood that DiZoglio’s existing authority claims are flatly wrong, it is highly unlikely that polls now showing overwhelming public support for Question One would be so overwhelming. DiZoglio clearly understands how important it is for voters to believe that she already has legislative audit authority. She needs this (mis)perception to help keep voters focused on her transparency critique of the legislature. Admitting that she’s asking for unprecedented and unconstitutional authority that no state auditor in America has ever had (i.e. the authority to audit the state legislature without its consent) would seriously complicate the issue for average voters, who tend to default to “No” on complicated ballot measures.

When confronted with the inconvenient truth that her office has never had and does not now have legislative audit authority by the attorney general, several appropriately qualified subject matter experts (including me), and now even the Boston Globe editorial board, DiZoglio’s strategy has been (and presumably will continue to be) to simply “disagree,” accuse the tellers of this inconvenient truth of being politically motivated “friends of the legislature,” claim that 117 reports produced by the state auditor’s office between 1849 and 2006 are performance audits of the legislature that prove her existing authority to conduct performance audits of the legislature without its consent, and finally and most emphatically, to claim that she answers to “The People,” who she claims are the experts on this issue and that as a duly-elected constitutional officer of the Commonwealth it is therefore her job to be responsive to the peoples’ intentions, not the legislature’s.

The key point here is that all of Auditor DiZoglio’s claims listed above are simply and clearly wrong. I’m not carrying water for the legislature. The 117 reports she brings to photo ops on a hand cart are not performance audits conducted without the legislature’s consent. And, elected state auditors are elected executives, not representatives. Auditor DiZoglio is accountable to the voters who elected her, but she does not have an electoral mandate to put her own interpretation of state law above the legislature’s.

Since the Globe editorial board acknowledges that DiZoglio does not have existing statutory authority to audit the legislature and since the members I spoke to seemed to me like highly intelligent people who must realize then that all of DiZoglio’s supporting claims on this point are also wrong, it’s a little hard to see how they decided to characterize a “yes” vote on Question One as “simply the right thing to do.” I think they decided that as journalists the opportunity to endorse Question One’s transparency message and its implicit criticism of the exceptional opacity of lawmaking on Beacon Hill was just too good to pass up.

The Constitutional Defects of Question One

The Globe editorial board seems to be giving Auditor DiZoglio, a champion for the government transparency that every journalist needs and wants, the benefit of the doubt, which is to say, they choose to assume that her many counterfactual claims related to her existing statutory authority are simply honest (albeit ongoing) mistakes. I too am trying very hard to assume that Auditor DiZoglio is acting in good faith.

Unfortunately, this charitable assumption seems to have helped push the Globe editorial board into getting the more significant legal issue here, the constitutionality of Question One, exactly wrong. They evidently decided that existing statutory authority isn’t necessary for their endorsement to be credible because passing Question One at the ballot box would make the statutory authority issue moot by unambiguously providing it. The only hang up for this line of reasoning, however, was the issue of whether or not a voter-enacted statute (i.e. a ballot initiative) that altered the relationship between an executive branch official and the legislature would be constitutional. My effort to explain to the Globe board members present at our meeting that it would indeed be a violation of the state constitution’s separation of powers and legislative supremacy principles was met with considerable skepticism and just a hint of indifference.

One board member, clearly frustrated with my constitutional analysis, argued that if what I was saying were true, Attorney General Andrea Campbell surely wouldn’t have allowed Question One to reach the ballot. Very pleased to have this common misunderstanding of the attorney general’s role in the initiative process on the table, I explained what I had previously explained at MassPoliticsProfs.org HERE and in our recently published book, The Politics of Massachusetts Exceptionalism: Reputation Meets Reality, on pages 212 and 213. Though Attorney General Campbell undoubtedly recognized that Question One would violate the state constitution’s separation of powers and legislative supremacy principles, she could not use that knowledge to block Question One from the ballot because Article 48 of the state constitution, which established the Commonwealth’s initiative and referendum process in 1918, only allows attorneys general to block initiatives that include very specific “excluded matters.” While an initiative that violates specifically listed constitutional rights would be excludable, the framers of Article 48 very clearly did not want questions as weighty as those implicating the constitution’s separation of powers and legislative supremacy principles to be decided by elected attorneys general or voters. On questions central to the constitutional integrity of the Commonwealth’s government, the Article 48 framers wanted the state’s judges to be the decisive constitutional gatekeepers if and when necessitated by the enactment of a ballot initiative. In short, the attorney general was not authorized to block Question One from the ballot. She was authorized to suggest, without effectively discrediting the initiative itself, that the constitutional questions would likely require judicial review of the measure if it were enacted.

Despite what I thought (and still think) is a nifty and impressive explanation on this point, the board members, who surprisingly seemed unfamiliar with the work of the MassPoliticsProfs, didn’t buy it, choosing instead to (mis)characterize the fact that Attorney General Campbell allowed Question One to proceed to the ballot as evidence that it must be constitutional. A disappointing outcome to be sure.

Interestingly, it seems that the one piece of evidence cited in the Globe’s endorsement of Question One that they correctly interpreted as clear evidence against the state auditor’s claim of existing statutory authority, a 1994 opinion letter written by then assistant attorney general Peter Sacks, is also the evidence they seem to believe proves me wrong about the constitutional defects of Question One. Unfortunately, they badly misinterpreted Assistant Attorney General Peter Sacks’ 1994 letter to then state auditor Joe DeNucci. In the Globe’s telling, Sacks expressly assured Auditor DeNucci that there were no significant “separation of powers objection[s] to a statute clearly authorizing you [Auditor DeNucci] to audit the Legislature’s accounts.” In one sentence fragment the Globe editorial board found clear evidence that Question One qualifies as what Sacks referred to as “a statute” and that what he meant by “audit the Legislature’s accounts” was not inconsistent with the audit authority that would be conferred on the state auditor by enacting Question One.

The Globe’s interpretation of Sacks’ analysis of the constitutionality question is completely wrong, effectively backward in fact. When you look at the sentences around the one the Globe endorsement partially quotes, you’d be hard pressed to believe that the board members ever read the actual letter at all. Before explaining, let me do what the Globe editorial board did not, namely quote the Sacks letter more completely.

Nevertheless, the ultimate resolution of this question is one that is more appropriately undertaken by legislators themselves. Although, in response to a subsidiary point raised in your opinion request, there would be no significant article 30 separation of powers objection to a statute clearly authorizing you to audit the legislature’s accounts under appropriate conditions established by the legislature” (Emphasis added).

 Now look again at the relevant language of the Globe endorsement:

Assistant Attorney General Peter Sacks, now an Appeals Court judge, wrote back to DeNucci with some good news and some bad news. The bad news: It seemed unlikely, he said, that the Legislature intended to subject itself to the auditor’s purview when it drafted the law outlining that office’s responsibilities…  But laws can be changed, as long as they don’t violate the state constitution. And Sacks did clarify that there would be no significant “separation of powers objection to a statute clearly authorizing you to audit the Legislature’s accounts,” clearing the way for DeNucci to pursue a change in the law. (Emphasis added).

Read in full, of course, Sacks is clearly explaining to Auditor DeNucci that avoiding significant separation of powers objections would require the legislature to pass an authorizing statute that establishes the appropriate legislatively-defined conditions. The contemporaneous and historical contexts within which Sacks was operating in 1994 also make clear that he was not endorsing the constitutionality of a ballot initiative conferring legislative audit authority on the state auditor’s office, never mind a ballot initiative like Question One, which includes absolutely no “appropriate conditions” established by anyone, not the legislature, not even the drafters of Question One.

Conclusions

The only part of the Globe’s endorsement of Question One that is correct on the law (i.e. the lack of existing statutory authority) clearly undercuts the crucial premise of Auditor DiZoglio’s very vigorous arguments to voters about Question One, arguments without which public support would almost certainly be less impressive at this point. The Globe Editorial Board’s misunderstanding of the attorney general’s constitutionally-limited role in the Commonwealth’s initiative and referendum process and misinterpretation of the legal analysis contained in now appeals court judge Peter Sacks’ thirty year old opinion letter have led to the Globe getting the biggest issue in this case wrong, the constitutionality issue. I am confident that average voters would see Question One in a considerably less flattering light if they were accurately informed about its constitutional defects.

So dear reader, if there is nothing wrong in your mind with supporting a ballot initiative about which proponents (who now include the Globe editorial board) have made a whole bunch of false claims and/or incorrect legal arguments (only a few of which I’ve mentioned here by the way), and you don’t mind that passing it won’t actually produce the promised results, which in this case means that the state legislature won’t be embarrassed into operating more transparently, and you’re okay with the real possibility that passing this ballot initiative could trigger a constitutional crisis at the state house, not to mention the transformation of the state auditor’s office into a highly partisan electoral prize that would eventually destroy its own credibility and invite to the Massachusetts state house the kind polarized partisan madness presently tearing the country apart, then by all means join the Globe editorial board in sending what they see as a consequences-free, symbolic, feel good, pro-transparency, anti-establishment, anti-backroom politics message to Beacon Hill leaders by voting “Yes” on Question one.

On the other hand, if you think as I do that good government activists and newspaper editorial board members are selling short their reputations for integrity and respect for the rule of law by letting their arguably justified disdain for the status quo on Beacon Hill push them into such a clear, and ultimately counter-productive, ends justify the means posture, then don’t follow the Globe’s lead. Follow instead perhaps the lead of the Massachusetts chapter of the League of Women Voters who have taken what I believe to be the most honest and responsible position that committed advocates for increased government transparency and public accountability could take, a position I personally recommended to the Boston Globe editorial board.

The Massachusetts chapter of the League of Women Voters issued a public statement that highlights their great sympathy and agreement with Auditor DiZoglio’s laudable goal of increasing legislative transparency on Beacon Hill, but takes no explicit position on her ballot initiative because they recognize that it would create, not clarify, legal authority that is constitutionally problematic. They got both the statutory and constitutional questions right. They didn’t shrink from their principles to advance their interests. This is, in my opinion, how you have it both ways the right way without damaging your credibility and without condoning ignorance or misinformation.